Adrian Vermeule, The Judiciary Is a They, Not an It: Interpretive Theory and the Fallacy of Division, 14 J. Contemp. Legal Issues 549 (2005).
Abstract: In his symposium article, Vermeule sets out to turn the contemporary social choice insight about legislatures to the service of criticizing the basic prescriptive project of advising courts as to how best to interpret ambiguous statutes. Essentially, Vermeule argues, the same problems that bedevil the modern legislature will also vex the multi-member institution that is the federal judiciary. By making the "fundamental mistake of overlooking the collective character of judicial institutions," interpretation theorists miss out on the relevant complexities of judicial behavior and thereby risk misaligning their theories with the real world. This need not be, however, the end of the road for a normative theory of judicial decision in general or statutory interpretation in particular. Non-ideal theory, which we take to represent theory that embraces the messiness of the collective legislative and judicial processes, can assist courts in interpreting statutes. Such assistance, for reasons Vermeule explains in detail, must be humble, targeted, and incremental. More generally, Vermeule suggests that the "fallacy of division," to which many ambitious interpretation theorists are prone, provides a false scaffold for dynamic and democracy-forcing theories of constitutional and statutory interpretation. He provides another set of reasons for skepticism about these influential views and, thereby, invites us to think afresh about intentionalism, a theory widely associated with more "conservative" approaches to discerning statutory meaning.